[Federal Register: November 4, 2008 (Volume 73, Number 214)]
[Rules and Regulations]
[Page 65496-65503]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr04no08-2]
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OFFICE OF PERSONNEL MANAGEMENT
5 CFR Part 630
RIN 3206-AL26
Emergency Leave Transfer Program
AGENCY: Office of Personnel Management.
ACTION: Final rule.
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SUMMARY: The U.S. Office of Personnel Management is issuing final
regulations on the Emergency Leave Transfer Program to provide
alternative methods for agencies to assist their employees in the event
of a pandemic health crisis or other major disaster or emergency as
declared by the President. The final regulations allow donated annual
leave in a voluntary leave bank administered by one agency to be
transferred to an emergency leave transfer program administered by
another agency, revise the rules for returning unused donated annual
leave to emergency leave donors (including leave banks), and
incorporate the inclusion of Judicial branch employees as eligible
participants in the emergency leave transfer program. In addition, the
final regulations have been reorganized and renumbered to aid in
accessibility and enhance reader understanding.
DATES: Effective Date: December 4, 2008.
FOR FURTHER INFORMATION CONTACT: Doris Rippey, by telephone at (202)
606-2858; by fax at (202) 606-0824; or by e-mail at pay-performance-
policy@opm.gov.
SUPPLEMENTARY INFORMATION: On October 15, 2007, the U.S. Office of
Personnel Management (OPM) published proposed regulations (72 FR 58263)
to amend 5 CFR 630, subpart K, to allow donated annual leave in a
voluntary leave bank administered by one agency to be transferred to an
emergency leave transfer program administered by another agency, revise
the rules for returning unused donated annual leave to emergency leave
donors (including leave banks), and incorporate the inclusion of
Judicial branch employees as eligible participants in the emergency
leave transfer program, as provided by Public Law 109-229, now codified
at 5 U.S.C. 6391(f).
The amendments made to OPM's regulations are intended to support
OPM's continuing efforts to provide alternative methods for agencies to
assist their employees in the event of a pandemic health crisis or
other major disaster or emergency as declared by the President. In
addition, the final regulations have been reorganized and renumbered to
aid in accessibility and enhance reader understanding.
The 60-day comment period for the proposed regulations ended on
December 14, 2007. During the comment period, we received comments from
five agencies, three unions, one payroll provider, and two individuals.
A summary of the comments received and the changes made in the
regulations are presented below.
Transfer of Leave From Leave Bank to Emergency Leave Transfer Program
at Another Agency
The proposed regulations added Sec. 630.1104 to permit a leave
bank at an agency to donate, with the concurrence of the leave bank
board, donated annual leave to an emergency leave transfer program
administered by another
[[Page 65497]]
agency during a Governmentwide transfer of emergency leave coordinated
by OPM.
Most commenters expressed support for this change and believed that
being able to transfer leave from a leave bank to an emergency leave
transfer program at another agency would be helpful because the donated
annual leave would already be available for quick distribution to
approved emergency leave recipients. One agency expressed concern that
donations from a leave bank to an emergency leave transfer program at
another Federal agency might mean leave bank members would not have
enough available donated annual leave for their own use, which could
have a negative impact on future leave bank membership.
In the current regulations at Sec. 630.1103(c), a leave bank, with
the concurrence of its leave bank board, already has authority to
donate annual leave to an emergency leave transfer program administered
by the leave bank's agency. The change in the proposed regulation would
extend that authority to make it possible for a leave bank to donate
annual leave to an emergency leave transfer program administered by
another agency. Under the current and proposed rules, the use of this
authority is discretionary.
During the Governmentwide transfer of donated annual leave
coordinated by OPM in the aftermath of Hurricane Katrina, we found that
many leave banks had large annual leave balances available for
immediate use. At that time, several agencies requested that we broaden
our regulations to permit the transfer of donated annual leave from the
leave banks to the emergency leave transfer programs of other agencies
to expedite the transfer of annual leave to those in need. When leave
bank boards are considering the possibility of donating annual leave
from their leave bank to an emergency leave transfer program--whether
the emergency leave transfer program is at the same or another agency--
we believe that the leave bank boards will act in the best interests of
their leave bank's members and make prudent decisions that will benefit
both the emergency leave transfer recipients and their leave bank
members who are faced with a medical emergency. We agree that
establishing a broader authority would provide an immediate benefit to
employees adversely affected by future major disasters or emergencies,
and we are adopting this provision in the final regulations.
Since the proposed regulations would allow a leave bank board to
transfer annual leave to an emergency leave transfer program
administered by another agency, a union asked if OPM would consider
requiring that any such leave bank board include representatives of the
unions and that these union representatives be consulted before
transferring annual leave from the leave bank to another agency. We
believe such a requirement is not necessary because Sec. 630.1003(c)
already requires that each leave bank board consist of three members,
one of whom must represent a labor organization or employee group.
Procedures for Returning Unused Donated Annual Leave to Emergency Leave
Donors
In the proposed regulations at Sec. 630.1118(b), the following new
procedure for returning unused donated annual leave was added: ``If the
total number of eligible leave donors exceeds the total number of hours
of annual leave to be restored, no unused transferred annual leave will
be restored.'' This proposal was written to be consistent with OPM's
voluntary leave transfer program regulations at Sec. 630.911, and the
intent was to promote standardization and eliminate the requirement to
return a minimal amount of leave to the leave donor (i.e., an amount of
leave that would be less than the smallest increment of leave that may
be processed under the payroll system covering the donor).
Returning Unused Donated Annual Leave to Donors
One agency supported the proposal, but a number of agencies and
three unions expressed concerns with loss of unused annual leave. One
agency and a union requested withdrawing this proposal. Several
agencies requested clarification and questioned where the value of the
unused donated annual leave would go if it were not restored. Some
commenters asked whether donated annual leave not restored could be
held over for the next emergency. Three unions disagreed with the
proposal to not return unused annual leave if the total number of
eligible donors exceeds the total number of hours of annual leave to be
restored. To illustrate this concern, one union provided a hypothetical
example of an emergency leave transfer program that had received annual
leave donations from 50,000 leave donors. Upon termination of the
emergency, 49,000 hours of donated annual leave remained unused, so
under the proposed rule it would seem that all 49,000 hours of donated
leave would be lost. Finally, one commenter suggested adding language
to permit returning leave on a proportional basis, similar to the
language in the voluntary leave transfer program in Sec. 630.911(b).
We appreciate the comments and concerns raised by the agencies and
unions and understand the need for clarification. The requirement to
forfeit unused donated annual leave when the total number of eligible
leave donors exceeds the total number of hours of annual leave to be
restored was intended to be applied only after the return of unused
donated annual leave for each donor had been calculated on a
proportional basis. In other words, unused donated annual leave must
first be restored proportionally to each leave donor in the appropriate
increments (i.e., the nearest increment of time the agency uses to
account for annual leave, such as 15 minutes) before any leave is
subject to forfeiture. Using the example from the union, the 49,000
hours of unused donated annual leave would be restored proportionally
to the 50,000 donors based on the number of hours of annual leave
donated by each donor to the emergency leave transfer program. Some
donors might receive several hours of returned leave, while some others
might receive only a fraction of an hour. However, even after the
agency applies the formula on a proportional basis, as a result of
rounding, there will still be a small amount of unused annual leave
subject to forfeiture, as it would be too small to credit to each leave
donor.
As a result of the comments, we are adding a reference to the
formula for restoring unused donated annual leave on a proportional
basis in the voluntary leave transfer program regulations at Sec.
630.911 to make the leave restoration process more transparent. We are
also revising Sec. 630.1117(b) to better explain the process of
restoring the unused donated leave. The revised language is as
follows--``Each agency must determine the amount of annual leave to be
restored to any leave bank and/or to each of the emergency leave donors
who, on the date leave restoration is made, is employed in the Federal
service. The amount of unused annual leave to be returned to each
emergency leave donor and/or leave bank must be proportional to the
amount of annual leave donated by the employee or the leave bank to the
emergency leave transfer program for such disaster or emergency, and
must be returned according to the procedures outlined in Sec.
630.911(b). Any unused annual leave remaining after the distribution
will be subject to forfeiture.''
[[Page 65498]]
Restoring Unused Donated Annual Leave to an Emergency Leave Bank or
Voluntary Leave Bank
A number of agencies and unions recommended restoring unused
donated annual leave to either an emergency leave bank or voluntary
leave bank. The primary concern was the loss of the unused annual leave
after the application of the procedures for restoring unused donated
annual leave. One suggestion was to establish a special, permanent
emergency leave bank that would retain any unused donated annual leave
for future emergencies as declared by the President. While we agree
that the establishment of a permanent emergency leave bank could
potentially expedite the distribution of annual leave for future major
disasters or emergencies, there is no legal authority to establish such
a program. Other commenters recommended that unused donated annual
leave be transferred to a leave bank at the employing agency. A similar
suggestion was previously addressed in the supplemental portion of the
final regulations that established the voluntary leave transfer program
(see 50 FR 67125) in response to a recommendation that unused donated
annual leave that could not be returned to voluntary leave transfer
program donors after applying the leave restoration formula be
transferred to a leave bank at the employing agency. OPM's response to
this suggestion was that ``unused annual leave donated under subchapter
III (voluntary leave transfer program) may not be credited to or
appropriated by a leave bank * * *. Only unused leave drawn from a
leave bank is to be restored to that leave bank.'' We restate our
previous response: it is OPM's policy that unused leave drawn from a
leave bank can be restored only to that same leave bank, i.e., leave
can only be restored to its point of origin. Therefore, any unused
donated annual leave remaining after the emergency leave program
restoration procedures are applied will be forfeited. We believe that
this approach is consistent with that used for the voluntary leave
transfer program and is an equitable method for returning the unused
leave within the confines of law.
Timing of the Restoration of Annual Leave
One agency felt that the requirement at proposed Sec. 630.1118(c)
that unused donated annual leave that a leave donor elects to have
restored in the next leave year be returned to the leave donor's
account in the first pay period of the following leave year is
impractical and suggested that Sec. 630.1118(c) be reworded to allow
the annual leave to be returned either in the current or the following
leave year.
Both Sec. 630.1108 of the current regulations and Sec.
630.1118(c) of the proposed regulations provide the employee the choice
of having unused donated annual leave restored in either the current
leave year or the first pay period of the following year. Restoring the
unused annual leave in the first pay period provides a greater benefit
to the leave donor by providing use of the restored annual leave for
the entire subsequent leave year. Therefore, the proposed language is
being adopted as final and can be found at Sec. 630.1117(d).
Participation of Judicial Branch Employees in an Emergency Leave
Transfer Program
Section 6391(f) of title 5, United States Code, authorizes OPM to
provide for the participation of Judicial branch employees in any
emergency leave transfer program after consultation with the
Administrative Office of the United States Courts. After such
consultation, OPM amended part 630, subpart K, in the proposed
regulations to clarify that a court or other Judicial branch agency can
participate in any emergency leave transfer program established by OPM
under 5 U.S.C. 6391. No comments were received regarding the inclusion
of the new legislative provisions allowing Judicial branch agencies to
participate in any emergency leave transfer program established by OPM
under 5 U.S.C. 6391. OPM is using this opportunity to revise the
definition of employee at Sec. 630.1102 to make it clear that Judicial
branch employees are covered by the definition of employee.
Miscellaneous Comments
We received several comments and requests for clarification which
were general in nature or which related to our reorganization and
rewriting of the regulations to enhance reader understanding.
Definition of Emergency Leave Donor
An agency suggested that, under proposed Sec. 630.1102, the
definition of emergency leave donor be revised to specify that only
accrued annual leave may be transferred because a donor cannot offer
advanced annual leave or annual leave that is not already available to
the donor. While we agree that only accrued annual leave may be
transferred, we don't believe this change is necessary because the
proposed language in Sec. 630.1110 (Sec. 630.1109 in the final
regulations) already states that an employee may request to transfer a
certain number of hours of his or her accrued annual leave.
Definition of Paid Leave Status
OPM removed the definition of paid leave status from Sec. 630.1102
in the final regulations. The definition is not applicable and does not
contribute to the enhancement of the reader's understanding. We added
language in Sec. 630.1108 to clarify that an approved emergency leave
recipient is not required to exhaust his or her accrued annual and sick
leave before receiving donated leave under the emergency leave transfer
program and that the recipient is eligible to be placed in a paid leave
status using transferred annual leave.
Allow Leave Recipient To Keep an Extra 40 Hours of Donated Annual Leave
One agency suggested that OPM allow a leave recipient to keep up to
40 hours of unused donated annual leave after the disaster or medical
emergency has terminated. The agency believes that, although the
initial disaster or medical emergency may be over, the employee would
still need the donated annual leave until he or she can build up his or
her annual and sick leave balances again. We do not agree. An employee
may qualify to be a leave recipient under the emergency leave transfer
program until the employee is no longer affected by the disaster or
emergency. Since the employee does not have to exhaust his or her
available paid leave (annual or sick leave) before becoming a leave
recipient under the emergency leave transfer program and the leave
recipient accrues both sick and annual leave while receiving donated
annual leave, the leave recipient would most likely have an available
leave balance for use once the disaster or emergency is terminated.
OPM Delegation of Authority
An agency noted that the language at proposed Sec. 630.1103(a)
states that under certain situations, OPM may delegate to an agency the
authority to establish an emergency leave transfer program. The agency
noted that the language is new and wanted to know how this enhances the
emergency leave transfer program. We have made this change as part of
OPM's continuing efforts to provide alternative methods for agencies to
assist their employees in the event of a pandemic health crisis or
other major disaster or emergency as declared by the President. This
new language allows OPM to exercise its delegation authority to
expedite the distribution of annual leave under the emergency leave
transfer program when circumstances
[[Page 65499]]
warrant this type of action. For example, an emergency may occur in a
remote location and affect only one agency, which may have sufficient
annual leave donations to cover all affected employees.
Renumbering the Regulations
An agency recommended changing the order of the items in proposed
Sec. 630.1103(b) to show the close of the donation period before the
distribution of annual leave to approved recipients. However, we note
that an agency may not know how long its employees will be affected by
a particular disaster or emergency, and it may begin to transfer annual
leave to emergency leave recipients long before it can determine the
period of time for which donated annual leave may be accepted for
distribution to emergency leave recipients. Based upon our program
experience, we believe our language more accurately reflects the actual
process. Therefore, we have not adopted this suggestion.
Maintaining Records on the Amount of Annual Leave Donated by Employees
An agency noted that the requirement under current regulations at
Sec. 630.1107(b)(2), that agencies must maintain records on the amount
of annual leave donated by each emergency leave donor for the purpose
of restoring unused transferred annual leave, is missing from the
proposed rule. The agency recommended that the language in the current
Sec. 630.1107(b)(2) be retained, since under Sec. 630.1118(a) of the
proposed rule (Sec. 630.1117(b) of the final regulations), when unused
annual leave is returned to the donors, agencies must still return the
amount of annual leave that is proportional to that donated by each
employee. Although we believe that each agency will maintain records of
its employees' annual leave donations based upon the requirements
listed in final Sec. 630.1117(b) to restore leave proportionally to
its leave donors and leave banks, we agree to add the language back
into the regulations in order to make the process more transparent.
Therefore, OPM is revising Sec. 630.1112 to add a new (b)(2) to
require an agency to ``maintain records on the amount of annual leave
donated by each emergency leave donor to the emergency leave transfer
program (for the purpose of restoring unused transferred annual leave
under 630.1117(b).'' Current (b)(2) and (b)(3) are renumbered as (b)(3)
and (b)(4), respectively.
Time Period for Employee Notification
Two agencies commented on the language in proposed Sec. Sec.
630.1107 and 630.1108 regarding the time period during which the
employing agency must notify an employee of the approval or disapproval
of his or her application to be an emergency leave recipient. The first
agency commented that both sections specify a 10 calendar-day period
for notifying employees, but Saturdays, Sundays, and legal public
holidays are excluded. The agency suggested it would be simpler to
change the notification period to either 14 calendar days or 10 work
days, with no exclusions. We disagree. We believe the language in the
proposed regulation provides consistency with Sec. 630.905(d) under
the voluntary leave transfer program, and we are therefore not adopting
this suggestion. The second agency believed the parenthetical language
in these two sections is unclear and pointed out that the parenthetical
language at current Sec. 630.1105(b) and (c) ``(or the date the
employing agency established its administrative procedures, if that
date is later)'' refers to a situation where the agency does not yet
have emergency leave transfer procedures in place. The agency suggested
that, if the proposed rule intends to continue to take that situation
into account, the language in current Sec. 630.1105(b) and (c) should
be retained. However, if the proposed rule assumes that all agencies
already have established emergency leave transfer procedures in place,
the time period should be clarified by revising the language to read,
``* * * within 10 calendar days (excluding Saturdays, Sundays, and
legal public holidays) after the date the application was received,
unless the agency establishes an extended time period.'' We disagree.
The new language reorganized and renumbered Sec. Sec. 630.1106 and
630.1107 to enhance the reader's understanding of the program. The
language was broadened not only to permit time to establish
administrative procedures, but to provide the greatest flexibility
possible for unpredictable situations that would require additional
time to make the necessary determinations. For example, if an agency
has many employees affected by a major disaster or emergency, it may
not be possible to make determinations for all affected employees
within the 10 calendar-day period. Therefore, the language in our
proposed regulations at Sec. Sec. 630.1106 and 630.1107 is being
adopted, but with one technical change. Section 630.1106 now solely
addresses the agency review of an application to become an emergency
leave recipient, and the language about the notification of the
approval or disapproval of an emergency leave recipient's application
has been combined into Sec. 630.1107.
OPM's Contacts With Agencies
In the section on transferring donated annual leave between
agencies at proposed Sec. 630.1113(b) (Sec. 630.1112(b) in the final
regulations), an agency suggested modifying the language to read,
``Each Federal agency OPM contacts to solicit annual leave donations
for transfer to another agency in need must * * *,'' saying that this
modification would clarify the reason OPM is contacting the agency. We
believe the context makes it clear why OPM is contacting agencies and
do not feel it is necessary to revise this section.
240-Hour Limitation on Donated Annual Leave
Two agencies shared comments on the limitation on the amount of
donated annual leave received by an emergency leave recipient at
proposed Sec. 630.1112 (Sec. 630.1111 in the final regulations). One
agency mentioned that the language in the proposed regulations (which
is identical to current Sec. 630.1106(d)), regarding the 240-hour
limitation on the amount of donated annual leave an emergency leave
recipient may receive, was unclear. The agency said that during
Hurricane Katrina, OPM had advised them that this section meant that an
emergency leave transfer program recipient could receive more than one
disbursement of 240 hours of annual leave for each disaster. Since this
had not been clear to them previously, they recommended this be set out
more clearly in the final regulations. We agree and have added the
following language at the end of Sec. 630.1111: ``After taking into
consideration the amount of donated annual leave available to all
approved emergency leave recipients and the needs of individual
emergency leave recipients, an employing agency may allow an employee
to receive additional disbursements of donated annual leave based on
the employee's continuing need. Each disbursement of transferred annual
leave may not exceed 240 hours.''
The second agency suggested that agencies be given more flexibility
to set higher limits than the 240 hours on a case-by-case basis and
suggested that this section be rewritten to include the following
statement: ``Agencies may consider any request beyond 240 hours on a
case-by-case basis. The decision should be based on documented need,
the amount of donated leave left in the
[[Page 65500]]
bank, and the total number of requests.'' The agency provided the
example of an employee injured at home during a disaster who would not
be eligible for worker's compensation payments and whose serious injury
could require the employee to be away from work for a period
substantially longer than 240 hours (6 weeks). The agency argued that
the employee might not have enough leave to cover an extended period of
absence beyond 6 weeks, and there would be no other forms of assistance
available to the employee at that point. The agency would prefer the
flexibility of higher donation limits to deal with such situations. We
believe the regulations already provide sufficient flexibility, and we
have not adopted this suggestion. Although we agree that an employee
may well have a need for more leave than 240 hours of donated annual
leave, the regulations as currently written allow an employee to
receive multiple disbursements of up to 240 hours of donated annual
leave each time.
Emergency Leave Recipients Subject to Annual Leave Forfeiture
An agency asked for clarification as to why, under the proposed
regulations at Sec. 630.1115 (Sec. 630.1114 in the final
regulations), emergency leave recipients are subject to the annual
leave carryover caps in 5 U.S.C. 6304(a), (b), (c), and (f). The agency
said it realizes this is not new language, but it would like to
understand the rationale behind this requirement. Since emergency leave
recipients are not required to exhaust their available paid leave
before receiving donated annual leave, it is possible that emergency
leave recipients may have annual leave balances at the end of the leave
year that would exceed the applicable annual leave carryover caps.
Since nothing in 5 U.S.C. 6391 exempts emergency leave recipients from
the requirements of 5 U.S.C. 6304(a), (b), (c), and (f), the
regulations mention these requirements as a point of clarification.
Decision To Terminate the Disaster or Emergency
An agency pointed out that proposed Sec. 630.1117(a) (Sec.
630.1116(a) in the final regulations) allows the employing agency to
determine when a disaster or emergency has terminated, whereas in the
current regulations at Sec. 630.1108(a)(1), the employing agency or
OPM may determine when the disaster or emergency has terminated. The
agency asked why the decision to terminate the emergency is delegated
to the agency. Our answer is that OPM would determine when a disaster
or emergency affecting an agency's employees has terminated only after
consulting with the affected agency. We believe that the agency is in
the best position to determine when the disaster or emergency has
ended.
We have also added language to Sec. 630.1116 to clarify that the
disaster or emergency affecting the employee terminates at the earliest
occurrence of one of the conditions listed in Sec. 630.1116(a)-(e) so
that the clause introducing paragraphs (a) through (e) now reads, ``The
disaster or emergency affecting the employee as an emergency leave
recipient terminates under the following conditions, whichever occurs
earliest''.
Comments Outside the Scope of the Regulations
There were a number of comments and recommendations from agencies
and individuals that we are not able to address in our final regulation
because they are outside the scope of the changes outlined in the
proposed regulations. Many of the recommendations would require
statutory changes in the program area. For example, one agency
recommended that employees be permitted to donate sick leave to an
emergency leave transfer program, and two agencies recommended that we
require employees to exhaust available paid leave before they can apply
to be an emergency leave recipient. In order to take action on the
other comments we received, OPM would have to develop and issue a new
proposed rule and allow for a public comment period. Finally, we
received a number of questions from an individual regarding the
administration of the emergency leave transfer program at the agency
level. These questions are best answered by the employee's servicing
human resources office.
Technical Amendment--Returning Unused Donated Annual Leave to Leave
Banks
In addition to the changes made to the proposed regulations based
on the comments we received, we are clarifying that unused donated
annual leave must be restored to both the emergency leave donors and
the agency leave banks that donated to the emergency. Therefore, we are
adding language in Sec. Sec. 630.1104, 630.1109, and 630.1117 to make
clear that unused donated annual leave must be returned to the
applicable emergency leave donors and voluntary leave banks.
E.O. 12866, Regulatory Review
This rule has been reviewed by the Office of Management and Budget
in accordance with E.O. 12866.
Regulatory Flexibility Act
I certify that these regulations will not have a significant
economic impact on a substantial number of small entities because they
will apply only to Federal agencies and employees.
List of Subjects in 5 CFR Part 630
Government employees.
Office of Personnel Management.
Michael W. Hager,
Acting Director.
0
Accordingly, OPM is amending part 630 of title 5 of the Code of Federal
Regulations as follows:
PART 630--ABSENCE AND LEAVE
0
1. The authority citation for part 630 continues to read as follows:
Authority: 5 U.S.C. 6311; Sec. 630.205 also issued under Pub.
L. 108-411, 118 Stat. 2312; Sec. 630.301 also issued under Pub. L.
103-356, 108 Stat. 3410 and Pub. L. 108-411, 118 Stat. 2312; Sec.
630.303 also issued under 5 U.S.C. 6133(a); Sec. Sec. 630.306 and
630.308 also issued under 5 U.S.C. 6304(d)(3), Pub. L. 102-484, 106
Stat. 2722, and Pub. L. 103-337, 108 Stat. 2663; subpart D also
issued under Pub. L. 103-329, 108 Stat. 2423; Sec. 630.501 and
subpart F also issued under E.O. 11228, 30 FR 7739, 3 CFR, 1974
Comp., p. 163; subpart G also issued under 5 U.S.C. 6305; subpart H
also issued under 5 U.S.C. 6326; subpart I also issued under 5
U.S.C. 6332, Pub. L. 100-566, 102 Stat. 2834, and Pub. L. 103-103,
107 Stat. 1022; subpart J also issued under 5 U.S.C. 6362, Pub. L.
100-566, and Pub. L. 103-103; subpart K also issued under Pub. L.
105-18, 111 Stat. 158; subpart L also issued under 5 U.S.C. 6387 and
Pub. L. 103-3, 107 Stat. 23; and subpart M also issued under 5
U.S.C. 6391 and Pub. L. 102-25, 105 Stat. 92.
0
2. Subpart K is revised to read as follows:
Subpart K--Emergency Leave Transfer Program
Sec.
630.1101 Purpose, applicability, and administration.
630.1102 Definitions.
630.1103 Establishment of an emergency leave transfer program.
630.1104 Donations from a leave bank to an emergency leave transfer
program.
630.1105 Application to become an emergency leave recipient.
630.1106 Agency review of an application to become an emergency
leave recipient.
630.1107 Notification of approval or disapproval of an application
to become an emergency leave recipient.
630.1108 Use of available paid leave.
630.1109 Donating annual leave.
[[Page 65501]]
630.1110 Limitation on the amount of annual leave donated by an
emergency leave donor.
630.1111 Limitation on the amount of donated annual leave received
by an emergency leave recipient.
630.1112 Transferring donated annual leave between agencies.
630.1113 Using donated annual leave.
630.1114 Accrual of leave while using donated annual leave.
630.1115 Limitations on the use of donated annual leave.
630.1116 Termination of a disaster or emergency.
630.1117 Procedures for returning unused donated annual leave to
emergency leave donors and leave banks.
630.1118 Protection against coercion.
Sec. 630.1101 Purpose, applicability, and administration.
(a) Purpose. This subpart provides regulations to implement section
6391 of title 5, United States Code, and must be read together with
section 6391. Section 6391 of title 5, United States Code, provides
that in the event of a major disaster or emergency, as declared by the
President, that results in severe adverse effects for a substantial
number of employees, the President may direct the Office of Personnel
Management (OPM) to establish an emergency leave transfer program under
which an employee may donate unused annual leave for transfer to
employees of his or her agency or to employees in other agencies who
are adversely affected by such disaster or emergency.
(b) Applicability. This subpart applies to any individual who is
defined as an ``employee'' in 5 U.S.C. 6331(1) and who is employed in--
(1) An Executive agency; or
(2) The Judicial branch.
(c) Administration. The head of each agency having employees
subject to this subpart is responsible for the proper administration of
this subpart. Each Federal agency must establish and administer
procedures to permit the voluntary transfer of annual leave consistent
with this subpart.
Sec. 630.1102 Definitions.
In this subpart:
Agency means--
(1) An ``Executive agency,'' as defined in 5 U.S.C. 105; or
(2) A Judicial branch entity.
Disaster or emergency means a major disaster or emergency, as
declared by the President, that results in severe adverse effects for a
substantial number of employees (e.g., loss of life or property,
serious injury, or mental illness as a result of a direct threat to
life or health).
Emergency leave donor means a current employee whose voluntary
written request for transfer of annual leave to an emergency leave
transfer program is approved by his or her employing agency.
Emergency leave recipient means a current employee for whom the
employing agency has approved an application to receive annual leave
under an emergency leave transfer program.
Emergency leave transfer program means a program established by OPM
that permits Federal employees to transfer their unused annual leave to
other Federal employees adversely affected by a disaster or emergency,
as declared by the President.
Employee means--
(1) An employee as defined in 5 U.S.C. 6331(1); or
(2) An employee of a Judicial branch entity.
Family member has the meaning given that term in Sec. 630.902.
Leave year has the meaning given that term in Sec. 630.201.
Transferred annual leave means donated annual leave credited to an
approved emergency leave recipient's annual leave account.
Sec. 630.1103 Establishment of an emergency leave transfer program.
(a) When directed by the President, OPM will establish an emergency
leave transfer program that permits an employee to donate his or her
accrued annual leave to employees of the same or other agencies who are
adversely affected by a disaster or emergency as defined in Sec.
630.1102. In certain situations, OPM may delegate to an agency the
authority to establish an emergency leave transfer program.
(b) OPM will notify agencies of the establishment of an emergency
leave transfer program for a specific disaster or emergency, as
declared by the President. Once notified, each agency affected by the
disaster or emergency is authorized to do the following:
(1) Determine whether, and how much, donated annual leave is needed
by affected employees;
(2) Approve emergency leave donors and/or emergency leave
recipients within the agency, as appropriate;
(3) Facilitate the distribution of donated annual leave from
approved emergency leave donors to approved emergency leave recipients
within the agency; and
(4) Determine the period of time for which donated annual leave may
be accepted for distribution to approved emergency leave recipients.
Sec. 630.1104 Donations from a leave bank to an emergency leave
transfer program.
A leave bank established under subchapter IV of chapter 63 of title
5, United States Code, and subpart J of part 630 may, with the
concurrence of the leave bank board established under Sec. 630.1003,
donate annual leave to an emergency leave transfer program administered
by the employing agency during a Governmentwide transfer of emergency
leave coordinated by OPM. Donated annual leave not used by an emergency
leave recipient must be returned to the leave bank as provided in Sec.
630.1117.
Sec. 630.1105 Application to become an emergency leave recipient.
(a) An employee who has been adversely affected by a disaster or
emergency may make written application to his or her employing agency
to become an emergency leave recipient. If an employee is not capable
of making written application, a personal representative may make
written application on behalf of the employee.
(b) An employee who has a family member who has been adversely
affected by a disaster or emergency also may make written application
to his or her employing agency to become an emergency leave recipient.
An emergency leave recipient may use donated annual leave to assist an
affected family member, provided such family member has no reasonable
access to other forms of assistance.
(c) For the purpose of this subpart, an employee is considered to
be adversely affected by a major disaster or emergency if the disaster
or emergency has caused the employee, or a family member of the
employee, severe hardship to such a degree that his or her absence from
work is required.
(d) The employee's application must be accompanied by the following
information:
(1) The name, position title, and grade or pay level of the
potential emergency leave recipient;
(2) A statement describing his or her need for leave from the
emergency leave transfer program; and
(3) Any additional information that may be required by the
potential leave recipient's employing agency.
(e) An agency may determine a time period by which an employee must
apply to become an emergency leave recipient after the occurrence of a
disaster or emergency, as defined in Sec. 630.1102.
[[Page 65502]]
Sec. 630.1106 Agency review of an application to become an emergency
leave recipient.
An agency must review an application to become an emergency leave
recipient under procedures the agency has established for the purpose
of determining that a potential leave recipient is or has been affected
by a disaster or emergency, as defined in Sec. 630.1102.
Sec. 630.1107 Notification of approval or disapproval of an
application to become an emergency leave recipient.
Once the employee's application to become an emergency leave
recipient is either approved or disapproved, the agency must notify the
employee (or his or her personal representative who made application on
the employee's behalf) within 10 calendar days (excluding Saturdays,
Sundays, and legal public holidays) after the date the application was
received (or the date established by the agency, if that date is
later). If disapproved, the agency must give the reason for its
disapproval.
Sec. 630.1108 Use of available paid leave.
An approved emergency leave recipient is not required to exhaust
his or her accrued annual and sick leave before receiving donated leave
under the emergency leave transfer program and the recipient is
eligible to be placed in a paid leave status using transferred annual
leave.
Sec. 630.1109 Donating annual leave.
An employee may voluntarily submit a written request to his or her
agency that a specified number of hours of his or her accrued annual
leave, consistent with the limitations in Sec. 630.1110, be
transferred from his or her annual leave account to an emergency leave
transfer program established under Sec. 630.1103. An emergency leave
donor may not donate annual leave for transfer to a specific emergency
leave recipient under this subpart. Donated annual leave not used by an
emergency leave recipient must be returned to the emergency leave
donor(s) and/or leave banks as provided in Sec. 630.1117.
Sec. 630.1110 Limitation on the amount of annual leave donated by an
emergency leave donor.
(a) An emergency leave donor may not contribute less than 1 hour or
more than 104 hours of annual leave in a leave year to an emergency
leave transfer program. Each agency may establish written criteria for
waiving the 104-hour limitation on donating annual leave in a leave
year.
(b) Annual leave donated to an emergency leave transfer program may
not be applied against the limitations on the donation of annual leave
under the voluntary leave transfer or leave bank programs established
under 5 U.S.C. 6332 and 6362, respectively.
Sec. 630.1111 Limitation on the amount of donated annual leave
received by an emergency leave recipient.
An emergency leave recipient may receive a maximum of 240 hours of
donated annual leave at any one time from an emergency leave transfer
program for each disaster or emergency. After taking into consideration
the amount of donated annual leave available to all approved emergency
leave recipients and the needs of individual emergency leave
recipients, an employing agency may allow an employee to receive
additional disbursements of donated annual leave based on the
employee's continuing need. Each disbursement of transferred annual
leave may not exceed 240 hours.
Sec. 630.1112 Transferring donated annual leave between agencies.
(a) If an agency does not receive sufficient amounts of donated
annual leave to meet the needs of approved emergency leave recipients
within the agency, the agency may contact OPM to obtain assistance in
receiving donated annual leave from other agencies. The agency must
notify OPM of the total amount of donated annual leave needed for
transfer to the agency's approved emergency leave recipients. OPM will
solicit and coordinate the transfer of donated annual leave from other
Federal agencies to affected agencies who may have a shortfall of
donated annual leave. OPM will determine the period of time for which
donations of accrued annual leave may be accepted for transfer to
affected agencies.
(b) Each Federal agency OPM contacts for the purpose of providing
donated annual leave to an agency in need must--
(1) Approve emergency leave donors under the conditions specified
in Sec. Sec. 630.1109 and 630.1110 and determine how much donated
annual leave is available for transfer to an affected agency;
(2) Maintain records on the amount of annual leave donated by each
emergency leave donor to the emergency leave transfer program (for the
purpose of restoring unused transferred annual leave under Sec.
630.1117(b)).
(3) Report the total amount of annual leave donated to the
emergency leave transfer program to OPM; and
(4) When OPM has accepted the donated annual leave, debit the
amount of annual leave donated to the emergency leave transfer program
from each emergency leave donor's annual leave account.
(c) OPM will notify each affected agency of the aggregate amount of
donated annual leave that will be credited to it for transfer to its
approved emergency leave recipient(s). The affected agency will
determine the amount of donated annual leave to be transferred to each
emergency leave recipient (an amount that may vary according to
individual needs).
(d) The affected agency must credit the annual leave account of
each approved emergency leave recipient as soon as possible after the
date OPM notifies the agency of the amount of donated annual leave that
will be credited to the agency under paragraph (c) of this section.
Sec. 630.1113 Using donated annual leave.
(a) Any donated annual leave an emergency leave recipient receives
from an emergency leave transfer program may be used only for purposes
related to the disaster or emergency for which the emergency leave
recipient was approved. Each agency is responsible for ensuring that
annual leave donated under the emergency leave transfer program is used
appropriately.
(b) Annual leave transferred under this subpart may be--
(1) Substituted retroactively for any period of leave without pay
used because of the adverse effects of the disaster or emergency; or
(2) Used to liquidate an indebtedness incurred by the emergency
leave recipient for advanced annual or sick leave used because of the
adverse effects of the disaster or emergency. The agency may advance
annual or sick leave, as appropriate (even if the employee has
available annual and sick leave), so that the emergency leave recipient
is not forced to use his or her accrued leave before donated annual
leave becomes available.
Sec. 630.1114 Accrual of leave while using donated annual leave.
While an emergency leave recipient is using donated annual leave
from an emergency leave transfer program, annual and sick leave
continue to accrue to the credit of the employee at the same rate as if
he or she were in a paid leave status under 5 U.S.C. chapter 63,
subchapter I, and will be subject to the limitations imposed by 5
U.S.C. 6304(a), (b), (c), and (f) at the end of the leave year in which
the transferred annual leave is received.
[[Page 65503]]
Sec. 630.1115 Limitations on the use of donated annual leave.
Donated annual leave transferred to a leave recipient under this
subpart may not be--
(a) Included in a lump-sum payment under 5 U.S.C. 5551 or 5552;
(b) Recredited to a former employee who is reemployed by a Federal
agency; or
(c) Used to establish initial eligibility for immediate retirement
or acquire eligibility to continue health benefits into retirement
under 5 U.S.C. 6302(g).
Sec. 630.1116 Termination of a disaster or emergency.
The disaster or emergency affecting the employee as an emergency
leave recipient terminates at the earliest occurrence of the following
conditions.
(a) When the employing agency determines that the disaster or
emergency has terminated;
(b) When the employee's Federal service terminates;
(c) At the end of the biweekly pay period in which the employee, or
his or her personal representative, notifies the emergency leave
recipient's agency that he or she is no longer affected by such
disaster or emergency;
(d) At the end of the biweekly pay period in which the employee's
agency determines, after giving the employee or his or her personal
representative written notice and an opportunity to answer orally or in
writing, that the employee is no longer affected by such disaster or
emergency; or
(e) At the end of the biweekly pay period in which the employee's
agency receives notice that OPM has approved an application for
disability retirement for the emergency leave recipient under the Civil
Service Retirement System or the Federal Employees' Retirement System,
as appropriate.
Sec. 630.1117 Procedures for returning unused donated annual leave to
emergency leave donors and leave banks.
(a) When a disaster or emergency is terminated, any unused annual
leave donated to the emergency leave transfer program must be returned
by the employing agency to the emergency leave donors, and if annual
leave was donated by any leave bank(s) it must be returned to the leave
bank(s).
(b) Each agency must determine the amount of annual leave to be
restored to any leave bank and/or to each of the emergency leave donors
who, on the date leave restoration is made, is employed in the Federal
service. The amount of unused annual leave to be returned to each
emergency leave donor and/or leave bank must be proportional to the
amount of annual leave donated by the employee or the leave bank to the
emergency leave transfer program for such disaster or emergency, and
must be returned according to the procedures outlined in Sec.
630.911(b). Any unused annual leave remaining after the distribution
will be subject to forfeiture.
(c) Annual leave donated to an emergency leave transfer program for
a specific disaster or emergency may not be transferred to another
emergency leave transfer program established for a different disaster
or emergency.
(d) At the election of the emergency leave donor, the employee may
choose to have the agency restore unused donated annual leave by
crediting the restored annual leave to the emergency leave donor's
annual leave account in either the current leave year or the first pay
period of the following leave year.
Sec. 630.1118 Protection against coercion.
(a) An employee may not directly or indirectly intimidate,
threaten, or coerce, or attempt to intimidate, threaten, or coerce, any
emergency leave donor or emergency leave recipient for the purpose of
interfering with any right such employee may have with respect to
donating, receiving, or using annual leave under this subpart.
(b) For the purpose of paragraph (a) of this section, the term
``intimidate, threaten, or coerce'' includes promising to confer or
conferring any benefit (such as appointment or promotion or
compensation) or effecting or threatening to effect any reprisal (such
as deprivation of appointment, promotion, or compensation).
[FR Doc. E8-26220 Filed 11-3-08; 8:45 am]
BILLING CODE 6325-39-P